Towards Better IP Knowledge, Strategy and Practice

On the Conference Board of Canada’s How Canada Performs: Report Card on Innovation, Canada ranks 9th and earns a poor “C” grade relative to 16 international peers. But on an indicator measuring patents per million population, Canada fares even worse, ranking second-to-last and scoring a “D.” Compared with international peers, Canadian inventors and businesses are much less likely to obtain patents for their ideas. Why? Do Canadian researchers and businesses have fewer ideas worth protecting than their international peers? Do inventors and businesses have ideas, but lack awareness, resources, and expertise to create and pursue sound intellectual property (IP) strategies and policies? Or is it something else altogether?

Concerns about Canada’s weak patent performance, and challenges related to IP generally, emerged as important themes during a joint meeting in Toronto of four Conference Board executive networks related to technology, innovation, and knowledge and information management. While recognizing that patents and other IP measures are just one part of the larger innovation challenge, speakers and attendees raised concerns about whether firms, governments, educational institutions, and others are taking appropriate action on this issue.

No Shortage of Ideas

As the innovation report card reveals, and as Conference Board President and CEO Daniel Muzyka reinforced in his presentation at the meeting, Canada’s challenge is not caused by a deficit of ideas. Canada earns a “B” and ranks 5th on scientific articles per million population—a useful measure of the state of discovery and knowledge generation by scientists and other researchers at the leading edge of their fields. In fact, meeting participants working in or with technology transfer offices in Canada’s universities noted that they are often presented with more ideas, across multiple fields, than the market can bear.

Moreover, Canada is a global leader in education and skills attainment, earning a “B” and ranking 3rd among 16 peer countries. This suggests that not only have Canadians been exposed to leading ideas in science, the arts, business, and other fields while pursuing education, but they have developed a range of skills and knowledge needed to generate and develop ideas of their own, whether in business, government, or elsewhere. In short, Canada’s innovation problem, and its patenting performance in particular, likely are not the result of an idea shortage.

IP Knowledge and Skills Deficits

Clues about the causes of weak patent performance began to emerge in a session led by Karima Bawa (Senior Fellow, Centre for International Governance Innovation (CIGI)) and Myra Tawfik (Professor, University of Windsor, and Senior Fellow, CIGI). Their research shows that Canadian researchers and firms, particularly young small and medium-sized enterprises (SMEs), exhibit both low awareness of the strategic value of IP and weak expertise in protecting and managing IP. Moreover, many organizations struggle to access the high-quality, timely, and affordable expertise they need. According to Bawa and Tawfik, these IP knowledge and expertise deficits have hindered some firms’ ability to compete and grow. Indeed, they report that some firms have tried to deal with IP issues without expert legal assistance and found that they had either unintentionally surrendered their IP or had made other legal missteps with their own or third-party IP.

To help address the challenge, Bawa and Tawfik call for changes to the existing infrastructure. For example, they propose the creation of IP legal advice clinics, staffed by law students under the supervision of appropriately credentialed and experienced IP lawyers. Such clinics, they say, would provide young, high-growth potential SMEs with affordable and timely IP expertise, as well as contribute to IP skills development among law students and other professionals. Moreover, as Tawfik writes elsewhere with colleague James Hinton, the advice offered to start-up clients would be “independent advice free from the business constraints of private practice that continue to rely on billable-hour fee structures that have been shown to encourage inefficiencies.”

On the Global Stage

However, compounding the challenge is the fact that patent and IP issues must be considered and addressed from a global, and not merely a Canadian, perspective. As Richard Gold, Professor and founding Director of the Centre for Intellectual Property at McGill University, writes, “Canadian innovators will always prefer to sell in the world’s major markets: the United States, Europe, and Japan. It is in these markets that Canadian companies will pursue their patent rights, not in Canada. This is why Canadians prefer to patent abroad instead of in Canada.” In that case, if changes to the existing infrastructure are made, such as the creation of IP legal clinics, attention should be paid to the global dimensions of IP protection and strategy, and expertise and support should be provided with global realities at the centre of attention.

At the same time, Canadians may not be prepared to succeed in global markets. Industry and policy-makers alike may be naive about how the global game of IP, as well as technology standards shaping the value of IP, must be played. Consequently, policy-makers will need to think as much about what they can do to help Canadian firms protect and use their IP abroad as they do about designing and adjusting the domestic Canadian IP environment.

Precisely which expertise and support are required to help Canadians compete on a global stage is an open question. Fortunately, as discussion at the meeting revealed, that perspective is beginning to show up on the radar of businesses, educators, government agencies, and organizations. Whether this can be translated into better performance for Canada when it comes to securing its IP remains to be seen.

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